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3:14-cv-00064 #118

3:14-cv-00064 #118

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Published by Equality Case Files
Doc 118 - Opinion and Order
Doc 118 - Opinion and Order

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Published by: Equality Case Files on Jun 06, 2014
Copyright:Traditional Copyright: All rights reserved


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IN THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF WISCONSIN- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -VIRGINIA WOLF and CAROL SCHUMACHER, KAMI YOUNG and KARINA WILLES, ROY BADGER and GARTH WANGEMANN, CHARVONNE KEMP and MARIE CARLSON, JUDITH TRAMPF and KATHARINA HEYNING, SALUD GARCIA and PAMELA KLEISS, WILLIAM HURTUBISE and LESLIE PALMER,JOHANNES WALLMANN and KEITH BORDEN, OPINION and ORDER Plaintiffs, 14-cv-64-bbc v.SCOTT WALKER, in his official capacity as Governor of Wisconsin, J.B. VAN HOLLEN, in his official capacity as  Attorney General of Wisconsin, OSKAR ANDERSON, in his official capacity as State Registrar of Wisconsin, JOSEPH CZARNEZKI, in his official capacity as Milwaukee County Clerk, WENDY CHRISTENSEN, in her official capacity as Racine County Clerk and SCOTT MCDONELL, in his official capacity as Dane County Clerk,Defendants.- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -Plaintiffs Virginia Wolf, Carol Schumacher, Kami Young, Karina Willes, Roy Badger,Garth Wangemann, Charvonne Kemp, Marie Carlson, Judith Trampf, Katharina Heyning,Salud Garcia, Pamela Kleiss, William Hurtubise, Leslie Palmer, Johannes Wallmann and
Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 1 of 88
Keith Borden are eight same-sex couples residing in the state of Wisconsin who either wantto get married in this state or want the state to recognize a marriage they entered intolawfully outside Wisconsin. Standing in their way is Article XIII, § 13 of the WisconsinConstitution, which states that “[o]nly a marriage between one man and one woman shallbe valid or recognized as a marriage in this state. A legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in thisstate.” In addition, various provisions in the Wisconsin Statutes, primarily in chapter 765,limit marriage to a “husband” and a “wife.” The parties agree that both the marriageamendment and the statutory provisions prohibit plaintiffs from marrying in Wisconsin orobtaining legal recognition in Wisconsin for a marriage they entered in another state orcountry. The question raised by plaintiffs’ complaint is whether the marriage amendmentand the relevant statutes violate what plaintiffs contend is their fundamental right to marry and their right to equal protection of the laws under the Fourteenth Amendment to theUnited States Constitution. Two motions are before the court: (1) a motion to dismiss for failure to state a claimupon which relief may be granted filed by defendants Scott Walker, J.B. Van Hollen andOskar Anderson, dkt. #66; and (2) a motion for summary judgment filed by plaintiffs. Dkt.#70. (Defendants Joseph Czarnezki, Scott McDonell and Wendy Christensen, the clerksfor Milwaukee County, Dane County and Racine County, have not taken a position oneither motion, so I will refer to defendants Walker, Van Hollen and Anderson simply as“defendants” for the remainder of the opinion.) In addition, Julaine K. Appling, Jo Egelhoff,
Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 2 of 88
Jaren E. Hiller, Richard Kessenich and Edmund L. Webster (all directors or officers of Wisconsin Family Action) have filed an amicus brief on behalf of defendants. Dkt. #109. Having reviewed the parties’ and amici’s filings, I am granting plaintiffs’ motion forsummary judgment and denying defendants’ motion to dismiss because I conclude that theWisconsin laws prohibiting marriage between same-sex couples interfere with plaintiffs’ rightto marry, in violation of the due process clause, and discriminate against plaintiffs on thebasis of sexual orientation, in violation of the equal protection clause.In reaching this decision, I do not mean to disparage the legislators and citizens who voted in good conscience for the marriage amendment. To decide this case in favor of plaintiffs, it is not necessary, as some have suggested, to “cast all those who cling totraditional beliefs about the nature of marriage in the role of bigots or superstitious fools,”United States v. Windsor, 133 S. Ct. 2675, 2717-18 (2013) (Alito, J., dissenting), or“adjudg[e] those who oppose [same-sex marriage] . . . enemies of the human race.” Id. at2709 (Scalia, J., dissenting). Rather, it is necessary to conclude only that the state may notintrude without adequate justification on certain fundamental decisions made by individualsand that, when the state does impose restrictions on these important matters, it must do soin an even-handed manner. This case is not about whether marriages between same-sex couples are consistent orinconsistent with the teachings of a particular religion, whether such marriages are moral orimmoral or whether they are something that should be encouraged or discouraged. It is noteven about whether the plaintiffs in this case are as capable as opposite-sex couples of 
Case: 3:14-cv-00064-bbc Document #: 118 Filed: 06/06/14 Page 3 of 88

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